Lead Opinion
Upon consideration of the Appellant’s motion for rehearing filed November 28, 2012, it is ordered that the Appellant’s motion for rehearing is granted; this court’s opinion dated November 14, 2012, is withdrawn; and the attached opinion is substituted therefor.
Appellant’s motion for rehearing en banc is denied as moot.
Corey Joshua Rocker appeals his conviction and sentence for first-degree felony murder, a violation of section 782.04(l)(a)(2)(d), Florida Statutes (2008). Because the State failed to meet its burden of proving that Rocker intended for the predicate offense of robbery to be committed and that he assisted in the commission of the attempted robbery, we conclude that the trial court erred in denying Rocker’s motion for judgment of acquittal, and we reverse his conviction for felony murder and remand for discharge.
I. FACTUAL BACKGROUND
The evidence at Rocker’s trial established that on January 24, 2008, sixteen-year-old Rocker made arrangements to meet the victim, Brennon Days, to purchase drugs. At about 6:48 p.m., Rocker contacted an acquaintance, Ryan Haynes, and told him he wanted to purchase drugs. When Haynes informed Rocker that he was unable to provide the drugs, Rocker requested the victim’s telephone number. According to the testimony elicited at trial, the victim sold drugs to Rocker at least three times in the past. At 6:55 p.m., Rocker called the victim.
Later that same night around 10 p.m., Rocker and his codefendant, Miterrio Banks, went to the home of another acquaintance, Golden Butler. While at Butler’s home, Rocker attempted to call the victim three times between 10:18 p.m. and 10:30 p.m. The victim returned Rocker’s phone calls around 10:32 p.m. Rocker then called the victim around 10:40 p.m., and the victim’s last phone call to Rocker was at 10:45 p.m. While Rocker was on the phone with the victim, Butler asked Rocker to whom he was talking and Banks told him to “shush,” to be quiet.
When Rocker and Banks arrived at Butler’s home, they had a pistol with them, and Butler testified that Rocker and Banks passed the pistol back and forth, “fondling it.” During their brief stay at Butler’s, neither Banks nor Rocker mentioned anything about using the pistol or robbing anyone. Before Rocker and Banks left Butler’s home, they asked Butler if he wanted to “go handle something.” Butler testified that the question could have meant, “Anything. Girls, money, anything.” Butler declined the invitation, and Rocker and Banks left Butler’s home with
Butler walked behind Rocker and Banks toward the entrance of the neighborhood. Butler then saw the victim’s car drive up, and Butler testified that -Banks approached the car by himself and bent down at the driver’s side window. At this point, Butler did not see Rocker anywhere nearby. Butler heard Banks ask the victim, “Where the money at?” Butler then heard a gunshot. At the sound of the gunshot, Butler became frightened and ran back toward his house. He also saw Rocker- and Banks running away from the victim’s car. Banks told Rocker, “I think he’s dead.” The victim died from a gunshot wound to his head.
Neighbors testified that they saw people running from the scene after the shooting. Frederick and Lisa Dessaure testified that they heard a gunshot.- When Mr. Dess-aure looked outside his window, he saw one man running past his window. Mrs. Dessaure looked out from a different window and saw two people running past her house. Mr. Dessaure called 911 at about 10:50 p.m. Neither Mr. Dessaure nor Mrs. Dessaure could identify the people running past their house.
Henry Hall, Rocker’s uncle, testified that Rocker called him at about 11 p.m. and asked Hall to pick him up at a location close to where the shooting took place. When Hall picked up Rocker, he noticed police activity in the area and asked Rocker if he knew what happened. Rocker denied knowing why police cars were in the area. Shortly after Hall picked up Rocker from the neighborhood, Rocker was arrested and charged with first-degree felony murder. Although police found trace amounts of gun residue on Rocker’s hands the day after the shooting, testimony was presented that such trace amounts could come from merely handling a gun.
Rocker and Banks, his codefendant, were tried jointly. Following the close of the State’s case, Rocker moved for judgment of acquittal, arguing that the State failed to meet its evidentiary burden. The trial court denied the motion. Rocker renewed his motion at the close of all the evidence, and the trial court again denied it. The jury returned a verdict finding Rocker guilty of first-degree felony murder, and he was sentenced tó a mandatory term of life in prison. On appeal, Rocker argues that the trial court erred in denying his motion for judgment of acquittal because the State presented insufficient evidence that he acted as a principal in the attempted robbery of the victim.
II. DISCUSSION
A. The Standard of Review
When “the evidence is insufficient to warrant a conviction,” the trial court must enter a judgment of acquittal. Fla. R.Crim. P. 3.380(a). Our review of the trial court’s- ruling denying Rocker’s motion for judgment of acquittal is de novo. Pagan v. State,
First-degree murder includes the unlawful killing of a person when committed by someone engaged either in the perpetration of, or in the attempt to perpetrate, a robbery. § 782.04(l)(a)(2)(d), Fla. Stat. (2008). Rocker was convicted of first-degree murder as a principal under section 777.011, Florida Statutes (2008), on the theory that he aided and abetted Banks in the attempted robbery of the victim. In order to convict Rocker as a principal, the State had to prove two elements: (1) that Rocker intended for the robbery to be committed and (2) that Rocker assisted Banks in the commission of the offense. See McBride v. State,
Under the case law, Rocker’s mere presence at the scene, knowledge of the robbery attempt, and flight from the scene are insufficient to support his conviction as a principal for Banks’ conduct. See McBride,
Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, ... is not sufficient to sustain [a] conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.
Davis v. State,
At the trial, the general outline of the events leading to the botched robbery and the victim’s death was essentially undisputed. However, the nature of the involvement of Rocker and Banks in these events was substantially different. Butler, the State’s only eyewitness to the attempted robbery and to the shooting of the victim, testified that Banks walked to the victim’s car, bent down to the driver’s side window, and demanded money. At that point, the pistol held by Banks discharged, fatally wounding the victim. The argument in footnote 5 of the dissent concerning the jury’s ability to assess the credibility of Butler’s testimony ignores the jury’s express finding of fact in the verdicts naming Banks — not Rocker — as the shooter. Physical evidence corroborated Butler’s identification of Banks — not Rocker — as the individual who approached the victim’s car and demanded money. A forensic technician found a latent fingerprint matching Banks’ left thumbprint on the exterior of the front door of the victim’s car. Thus the State presented direct evidence of Banks’ guilt as the perpetrator of
The State’s case against Rocker was very different. Rocker was not carrying the pistol, and he made no demand for money. Butler did not place Rocker at or near the victim’s car during the attempted robbery and shooting. Indeed, the evidence at trial did not establish Rocker’s precise whereabouts or actions at the time that Banks was pursuing his robbery attempt. Of course, the State did establish that Rocker made a series of telephone calls to the victim designed to induce him to come to the neighborhood where the robbery occurred. If Rocker intended to commit the robbery, then one could conclude that Rocker assisted Banks by luring the victim to the scene. However, because the purpose of Rocker’s telephone calls is unknown, the critical question on the motion for judgment of acquittal was Rocker’s intent. On the one hand, the State’s theory of the case was that Rocker and Banks jointly planned to lure the victim to the neighborhood to rob him. On the other hand, Rocker’s hypothesis of innocence was that he contacted the victim to set up a drug transaction without prior knowledge that Banks intended to take advantage of the situation to rob the victim.
The State’s case against Rocker as a principal to the attempted robbery was purely circumstantial and can be summarized as follows: (1) Rocker made a series of phone calls designed to lure the victim to the place where he was ultimately killed; (2) Rocker was seen handling the murder weapon before the attempted robbery; (3) Rocker was seen going to the arranged location for the meeting where the murder occurred; (4) Rocker and Banks asked Butler if he wanted “to go handle something”; and (5) Rocker was seen running from the scene within minutes of the murder. Neither Rocker nor Banks testified at the trial. Nor did the State introduce evidence of any out-of-court inculpatory statements made by either man after the event. Butler was the State’s only eyewitness to the botched robbery perpetrated by Banks. But Butler’s testimony did not provide any evidence concerning Rocker’s intent. Furthermore, beyond the general motive for robbery that can be inferred from mere commission of the crime, no evidence existed that Rocker had a vendetta against the victim or had expressed a need or desire for money that could have motivated the crime and provided evidence of Rocker’s intent. Thus, to avoid a judgment of acquittal, the State had to present evidence that was not only consistent with Rocker’s guilt but that was also inconsistent with his reasonable hypothesis of innocence. See Valdez,
It was undisputed at trial that Rocker placed several telephone calls to the victim to induce him to come to the neighborhood where the attempted robbery and murder occurred. Nevertheless, Rocker cannot be properly convicted as a principal based on this evidence alone. “Merely creating circumstances or conditions that allow another to commit an independent offense is not enough to establish one as a principal to that offense.” C.D. v. State,
Additionally, the record reflects that before Rocker called the victim from Butler’s residence, he called Haynes. Haynes testified for the State at trial that Rocker had called him seeking to buy drugs. Haynes had just been released from jail, and he was confined to his residence; Haynes told Rocker that he was unable to supply anything. During Rocker’s telephone conversation with Haynes, Rocker asked for the victim’s telephone number. Haynes furnished the number, and Rocker then telephoned the victim. This evidence suggests that Rocker’s intent in later contacting the victim was to buy drugs, not to commit a robbery.
It was also undisputed at trial that Rocker and Banks shared possession of a pistol at Butler’s residence. But Rocker’s joint possession of a pistol with Banks does not establish that Rocker intended to rob the victim. Butler testified that he did not consider the possession of a pistol by Rocker and Banks to be unusual. On the contrary, he said that the possession of guns is common in his neighborhood. Our common sense and experience tells us that the presence of firearms at drug transactions is a frequent occurrence. Thus the possession of a firearm by Rocker and Banks is just as consistent with a planned drug buy as it is with a proposed robbery.
Next, Butler testified that he observed Rocker walking with Banks to the arranged location for the planned drug buy. However, similar to Rocker’s joint possession of a pistol with Banks, Rocker’s act of approaching the scene with Banks is just as consistent with the theory that he was participating in a drug transaction as it is with the theory that he was participating in a robbery. In the absence of additional proof, such evidence is insufficient to prove Rocker’s intent to commit a robbery.
As evidence of Rocker’s intent, the State highlights that before Rocker and Banks left Butler’s house, they asked him if he wanted to “go handle something.”
In addition, an assumption that an inquiry to Butler about “handling something” necessarily referred to a planned robbery of the victim is at odds with the known facts in two respects. First, Butler was adamant that neither Rocker nor Banks said anything to him about robbing someone. Second, assuming that Rocker and Banks were planning to rob the victim, they had no reason to add a third person to their group. Rocker and Banks had only one gun; they did not require additional personnel. If the two men had involved Butler in their hypothetical plot, Butler’s involvement would have only resulted in reducing the shares of the loot for Rocker and Banks from one-half to one-third.
Last, the State points to Rocker’s flight from the scene within minutes of the murder as evidence of his intent to commit a robbery. While Butler testified that he observed Rocker and Banks running away from the victim’s car after Banks shot the victim, this evidence is also unavailing. Flight from the scene is insufficient to support a conviction of an accused as a principal. Staten v. State,
Moreover, Rocker may have fled the scene for a variety of reasons. He may have been concerned about his culpability in the failed drug transaction. The unexpected discharge of the pistol wielded by Banks provided ample cause for fright and flight. Butler, who was not involved in the purchase of drugs from the victim or in the attempted robbery, also fled the scene. The evidence of Rocker’s flight does not provide evidence of his intent to participate in the robbery of the victim.
III. CONCLUSION
Based on the foregoing review of the evidence, which was purely circumstantial, we find that the State did not present facts inconsistent with Rocker’s reasonable hypothesis of innocence. The State failed to present any evidence indicating Rocker’s intent. Therefore, to reach the conclusion that the evidence was sufficient to support Rocker’s conviction as a principal would require an impermissible stacking of inferences. See I.Y.D. v. State,
Reversed and remanded for discharge.
. Rocker raised several arguments on appeal; however, because we conclude that his conviction warrants reversal on this ground, we need not address the merits of the other grounds raised.
. Another possible scenario is that Banks acted on the spur of the moment in committing his robbery attempt.
. Butler did not specify whether Rocker or Banks asked him this question. Unfortunately, neither the prosecutor nor defense counsel requested clarification on this point.
Concurrence Opinion
Concurring.
I wholly agree with the majority opinion, but I write' separately for two reasons. The first is to clarify the precise way in which the State’s evidence was insufficient to present the question of Rocker’s guilt or innocence to the jury. The majority and the dissent quite properly focus on whether the evidence was sufficient to prove that Rocker intended the robbery of Day and that he assisted that endeavor. These were the elements necessary to establish Rocker’s guilt as a principal to the robbery attempt. As the dissent points out, the question of intent — that is, what did the defendant intend — is usually for the jury. But the State’s case failed at a more basic level: nothing in the evidence showed that Rocker was even aware that Banks intended to rob Day.
The question of knowledge is not the same as that of intent. As both of my colleagues recognize, a defendant’s mere knowledge that another plans to commit a crime is insufficient to prove that the defendant was a principal to that crime, i.e., that he intended for the crime to be carried out. But it is certainly also true that the defendant could not be a principal to the crime without prior knowledge of it. In other words, knowledge coupled with other circumstances may or may not be sufficient to show intent, but intent cannot be circumstantially proved unless one or more of the circumstances demonstrate knowledge.
Thus, before the jury could be called upon to decide whether Rocker intended for Day to be robbed, the State was obliged to demonstrate that Rocker knew of Banks’ intention to do so. It failed in that proof because none of the State’s circumstantial evidence, whether examined singly or collectively among the “surrounding circumstances”, demonstrated Rocker’s knowledge of Banks’ plan. None of the circumstances even preponderated over the reasonable theory that Rocker was unaware of Banks’ intention, let alone refuted it. As such, the evidence could not, as a matter of law, support a jury’s determination that Rocker knew of the planned robbery attempt beyond a reasonable doubt.
With that said, my second purpose is to address the dissent’s mistaken interpretation of the special standard of review applicable to circumstantial evidence cases. The basis of that misunderstanding can be seen in the dissent’s quotation from a two-sentence passage in State v. Law,
“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law,559 So.2d 187 , 188 (Fla.1989). However, “[t]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine,” and the jury’s decision will not be reversed where there is substantial, competent evidence supporting it. Id. (emphasis added)
The dissent seizes on the second sentence as justification for treating the circumstantial evidence rule as purely a jury matter. It carries this premise forward to embrace a highly deferential standard of review in circumstantial evidence cases.
In so doing, it has overlooked that Law was written for the very purpose of reconciling the roles of the judge and jury in a circumstantial criminal case — and it rejected the view advanced by the dissent.
The Law court described the issue before it as “whether a trial judge may send a criminal case to the jury if all of the
In Law, the state contended that the rule did not apply to a motion for judgment of acquittal. It argued that because a defendant moving for judgment of acquittal admits all reasonable inferences from the evidence in favor of the state, the case should go to the jury regardless of whether the state’s evidence is inconsistent with the defendant’s reasonable hypothesis of innocence. Id. at 188. At bottom, this is the same reasoning by which the dissent concludes that in this case the State met its burden of introducing evidence that is inconsistent with Rocker’s theory of innocence simply by tendering evidence from which the jury could infer his guilt.
But, of course, the fact that a circumstance might support an inference of guilt does not mean that it does not also support an inference of innocence. If the circumstantial evidence rule only required the state to submit evidence from which the jury could infer guilt, the standard of review could hardly be considered “special”, because circumstantial cases would be like any other. Rather, to satisfy the circumstantial evidence rule, the state’s evidence must be truly inconsistent with the defendant’s theory of innocence; it must contradict it or exclude it as a reasonable possibility.
As we know, the Law court rejected the state’s argument. It held that the state’s burden is “to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Id. at 189. Only after that burden is met does it fall to the jury to determine whether the evidence is sufficient to “exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Id. Indeed, the court wrote that if the state does not offer evidence that is inconsistent with the defendant’s hypothesis of innocence, “ ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” Id. at 189 (quoting Lynch v. State,
Thus, the Law court expressly agreed with the following statements in Fowler v. State,
[I]t is for the court to determine, as a threshold matter, whether the state has been able to produce competent, substantial evidence to contradict the defendant’s story. If the state fails in this initial burden, then it is the court’s duty to grant a judgment of acquittal to the defendant as to the charged offense, as well as any lesser-included offenses not supported by the evidence.
The upshot is that it is a judicial function to determine in the first instance whether the circumstances shown by the state’s evidence contradict the defendant’s reasonable hypothesis of innocence. If it does not, as a matter of law the jury cannot infer the defendant’s guilt. To be sure, when making that assessment the court must give the state the benefit of any conflicts in the evidence. But it is not, as the dissent maintains, a question of whether the jury might reasonably infer in favor of the state over the defense. The circumstances either contradict the defense theory' or they do not. If the latter, it is the trial court’s duty to grant a judgment of acquittal. Failing that, it is the appellate court’s duty to reverse.
As did the supreme court in Law, in this case the majority has painstakingly examined the State’s circumstantial evidence. It has accurately concluded that none of that evidence contradicted the theory that Rocker’s involvement in the fatal incident was as the organizer of an intended drug transaction, not as a principal to an attempted robbery. As such, the evidence was legally insufficient to support Rocker’s conviction no matter how strongly it might have suggested his guilt.
In contrast, for the most part the dissent recites circumstances that merely supported an inference of Rocker’s guilt without regard to whether that evidence contradicted his theory of innocence. This is consistent with the dissent’s assertion that when assessing the legal sufficiency of the evidence we must defer to the jury’s ability to draw inferences, but it contravenes the circumstantial evidence rule as prescribed by the supreme court.
To be fair, I note that in its recitation of circumstances the dissent mentions three that it suggests were at odds with Rocker’s theory of events. First, it posits that “if Rocker and Banks had simply wanted to purchase drugs that night, they could have purchased them from Butler, who testified that he left his house to sell cocaine.” But this is an inference improperly stacked atop two others, i.e., that Rocker and Banks knew that Butler had cocaine to sell, and that Butler would have sold it to them. No evidence supported this. To the contrary, the evidence suggested good reasons why Butler would have kept to himself his own intention to engage in a drug deal. For one thing, in his testimony Butler noted that Rocker was not a close friend and that Banks was merely an acquaintance who arrived with Rocker unexpectedly. Butler also testified that he did not want to get involved with whatever Rocker and Banks were about that evening because he was “straight”; he was on probation and did not want to have it violated. And, as we know, Butler had his own business to transact. Having arranged to sell cocaine to a buyer — Butler testified that he was going to meet a regular customer — it likely was not in his best interest to instead offer the drugs to Rocker and Banks. In short, the fact that Butler intended to sell cocaine that night in no way contradicted the theory that Rocker was planning a cocaine buy from Brennon Days.
Finally, the dissent observes: “As the trial court noted, ‘you don’t go up to somebody that you’re going to do a dope deal with and say where’s the money at.’ ” The fallacy in this argument is plain to see: Rocker was not the one who said it. There was no evidence to show that he heard it said, and there was no evidence suggesting that he knew it would be said. That Banks demanded money from Days and then shot him simply did not refute the defense theory that Rocker’s involvement was purely as the organizer of a drug transaction.
In sum, the three members of this panel have separately and meticulously combed through the record, and none of us has identified any evidence that contradicted Rocker’s theory of innocence. To the contrary, all of the circumstantial evidence— every last bit of it — was fully consistent with Rocker’s innocence. Accordingly, we are duty bound to reverse his conviction.
Dissenting Opinion
Dissenting.
I respectfully dissent because I disagree with the majority’s conclusion that, as a matter of law, “the State failed to meet its burden of proving that Rocker intended for the predicate offense of robbery to be committed and that he assisted in the commission of the attempted robbery.”
Rocker was convicted of first-degree murder as a principal on the theory that he aided and abetted Banks in the attempted robbery of the victim. To be a principal in a crime, a person “ ‘must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.’ ” State v. Tovar,
When a conviction is based entirely upon circumstantial evidence, the sufficiency of the evidence is measured on appeal by a “special” standard of review. Bronson v. State,
“ ‘Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be, deniedf.]’ ” Kocaker v. State,
The issue in this case was Rocker’s intent. Intent can be proven by a combination of surrounding circumstances from which the jury can reasonably infer the defendant’s guilt. Salter v. State,
“[A] trial court should rarely, if ever, grant a motion for judgment of acquittal based on the state’s failure to prove mental intent.” Hardwick v. State,630 So.2d 1212 , 1214 (Fla. 5th DCA 1994) (quoting Brewer v. State,413 So.2d 1217 , 1220 (Fla. 5th DCA 1982)). “Whether one had intent is generally a question given to a jury, for reasonable men may differ in determining intent when taking into consideration the surrounding circumstances.” State v. Herron,70 So.3d 705 , 706 (Fla. 4th DCA 2011).
Tovar,
In this case, the majority’s approach disregards this admonition and decides the issue of intent by analyzing the facts of the case one by one, instead of in toto taking into account the surrounding circumstances. After analyzing the facts one by one, the majority opinion culminates in the conclusion that the State did not “present
Here, the State met its burden of introducing evidence inconsistent with Rocker’s hypothesis of innocence which would then allow the jury to infer his intent to commit the crime. That evidence showed that Rocker aided in commission of the attempted robbery by making repeated phone calls to the victim to get the victim to drive to the neighborhood — a neighborhood he neither lived in nor frequented. While Rocker was on the phone with the victim, Butler asked who he was talking to and Banks told him, “shush,” to be quiet, which suggested that Rocker and Banks were working together to lure the victim. As the trial court noted in its ruling, a jury could conclude that this was evidence of “shushing the other guy ... so the guy who is the object of the robbery doesn’t know there’s going to be multiple people there.” Rocker and Banks brought a gun with them to Butler’s home and were passing it back and forth, “fondling it.” Right before they left Butler’s house, they asked Butler if he wanted to “go handle something.” Notably, although Rocker was the person who had purchased cocaine from the victim several times in the past, when the victim drove to the neighborhood Rocker did not approach the vehicle; he let Banks approach the victim and apparently hid.
Finally, I note that in Knight v. State,
. Of course, the only testimony to this fact comes from Butler, who was Rocker's childhood friend and who barely knew Banks. And this testimony seems to be contradicted by the State's evidence that Rocker had gunshot residue on his hands upon arrest while Banks did not. The upshot of this is that the jury in this case was properly permitted to assess the credibility of Butler’s testimony-a credibility determination that should not be taken from it.